Legal Question in Employment Law in California

Under my doctors care and unable to work from 12/15/17 through 2/18/18. My supervisor at the time (who has now been demoted) informed me that if I was going to miss more days I would have to file a FMLA with the State thru EDD. He said it was out of his hands it was now between me and the State. I contacted EDD and filled out the paperwork. My first day back to work (released by my doctor 2/19/18 they did not have anything for me so I went back to work on 2/22/18) my new boss (who was hired while I was out) took me into her office and asked me if I had filled out the FMLA leave because Liberty Mutual did not have a claim for me. I told her I was told to go thru the State and that is what I did. She said that is not the procedure I was to follow I was to go thru LM. She dialed up LM and I started a new FMLA claim on the phone. I was concerned about starting a new claim because I was afraid they would try to get me for fraud because I had already signed up with EDD. A few days later, she called me in again to give me a write up stating that my absence were not excused because I did not have a claim setup and I was in violation of their policy and could be terminated. A week later I went out on my second leave which I am on now under my doctor’s care again. My supervisor again has threated to fire me because I am missing work.

Liberty Mutual sent me a letter dated 2/24/18 stating they received my request outside the allowable time period established by my company. As a result, we are unable to back date your leave more than 15 days from 2/22/18 (date my boss had me setup the claim in her office). Your leave will begin on 2/7/18 and end on 2/19/18. I explained that the reason it was delay was because of my supervisor at my company gave me incorrect directions. I knew nothing about LM until my new boss dialed you on the phone and we setup the claim. I asked them why they were only paying me for that many days when I was out for 30 days or more.

I just found out that they are not going to issue me a check that is the responsibility of the State. All this time I was waiting for a check because I am hurting financially and now I have to go back to the State. The original claim I had set up with EDD came back stating that my claim was rejected because I filled out the wrong forms. I was supposed to sign up for short term disability not FMLA. I decided not to reopen it because I had just started a claim with Liberty Mutual and I did not want them to accuse me of fraud so I just did not reply. Now, it has been over 6 month and I have not been paid. Nobody from my work explained the procedure not how to or booklet explaining what I was supposed to do. How am I to know? I just got a letter from my work saying they are going to fire me because I have not been to work since June 6, 2018. Can I get help with this company their supervisor is the one that directed me on what to do and now they are saying because I did not meet their guidelines they changed my leave dates. I have all the correspondence and my doctor’s note stating I am under his care and will return end of August 2018. What my company does not know is that my supervisor not only told me to go thru the State I have the text that states that. I think they will try to say the supervisor did not say that but they do not know we have a text as well as proof.

Thank you


Asked on 7/14/18, 7:50 am

1 Answer from Attorneys
David Sarnoff Sarnoff + Sarnoff

Based on what you've written, you may have multiple different causes of action under various California anti-discrimination and/or medical leave laws. The California Fair Employment and Housing Act (FEHA) prohibits discrimination, harassment, and/or retaliation against an employee because of that employee's disability. It depends on the medical issue that required your doctor's care and for which you went out on medical leave in the first place. The California Family Rights Act (CFRA), which is the state equivalent of the federal Family and Medical Leave Act (FMLA) prohibits interference with and retaliation for taking medical leave if the employer is subject to the requirements of CFRA (meaning the company has more than 50 employees within a 75 mile radius of your place of employment) and you, as the employee, are eligible for leave under the CFRA/FMLA (you have been employed there for more than a year prior to your leave starting and you worked more than 1,250 hours in the year prior to your leave starting).

Of course, it's impossible to give a complete assessment of your situation based on this information. If you would like a more in-depth evaluation, please contact our office at (650) 393-4995. Someone at our office will get additional information from you for the attorneys to review and assess to determine what may be done to help you. You can also find more information on our website at www.sarnofflaw.com. You may also need the assistance of an attorney who practices disability benefits law. If that is the case, we know someone who exclusively does that type of law who can assist you.

Kind regards,

David Sarnoff

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Answered on 7/14/18, 9:01 pm


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